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March 30, 1977

Complaint of FLOTA MERCANTE GRANCOLOMBIANA, S.A., as Owner of the M/V REPUBLICA DE COLOMBIA, for Exoneration from or Limitation of Liability, and related case Nos. 72 Civ. 3987, 72 Civ. 4079, 72 Civ. 4936, 72 Civ. 5450, and 73 Civ. 1483

The opinion of the court was delivered by: BRIEANT


 BRIEANT, District Judge.

 This admiralty action arises out of a collision which occurred on September 14, 1972 off Cape Hatteras, North Carolina, approximately 12 miles north of Diamond Shoals Light. The vessels involved were the M/V REPUBLICA DE COLOMBIA ("COLOMBIA"), which is owned and operated by Flota Mercante Grancolombiana, S.A. ("Grancolombiana"), and the S.S. TRANSHAWAII ("TRANSHAWAII"), which at that time was owned and operated by Hudson Waterways Corporation ("Hudson"). The ships remained locked together for more than 24 hours, with the COLOMBIA suffering such extensive damage that she had to be towed to Newport News, Virginia.

 One week later, on September 21, 1972, Grancolombiana filed a petition for exoneration from or limitation of liability pursuant to 46 U.S.C. § 183. Hudson filed a claim seeking to place the entire blame for the collision on the COLOMBIA and opposing any limitation of liability. Thereafter, the owners of cargo laden on board the COLOMBIA, Amax Copper, Inc., Leon Taffae Co., Inc., Standard Fruit and Steamship Co., M. Trombetta and Sons, Inc. and Darik Enterprises ("Cargo Claimants") filed claims against the COLOMBIA in the limitation proceeding, and also brought separate actions against the TRANSHAWAII for all economic losses sustained by them. The Cargo Claimants' separate actions have been consolidated with the limitation proceeding for purposes of trial.

 While the above-named parties were engaged in pre-trial discovery, the helmsman of the TRANSHAWAII, one Nicholaos Hrysaghis sought leave to intervene in these proceedings. He claims against whoever is ultimately held responsible, alleging that he sustained personal injuries in the collision. In the interests of justice, leave to intervene was granted on October 2, 1973. *fn1"

 By stipulation of the parties, incorporated in Paragraph VIII of the Pre-trial Order, dated June 17, 1974, all issues as to damages have been deferred and will be held for a separate trial should liability be found. A non-jury trial was then held before me limited to the issues of liability more fully described below.

 The COLOMBIA seeks exoneration and claims that the entire fault for the accident lies with the TRANSHAWAII. If complete exoneration is denied, then the COLOMBIA seeks in the alternative, to limit her liability upon familiar principles to the value of the ship at the conclusion of the voyage and freights then pending. The City of Norwich, 118 U.S. 468, 6 S. Ct. 1150, 30 L. Ed. 134 (1886). *fn2" Hudson and the Cargo Claimants assert that the COLOMBIA was at fault in the collision, and also that her owner should be denied the benefit of the limitation of liability statute, because the vessel was unseaworthy when she broke ground on this voyage. The Cargo Claimants also assert that the TRANSHAWAII was partly responsible for the mishap and seek to recover against her as the non-carrying vessel under long-established case law. The "Atlas", 93 U.S. 302, 23 L. Ed. 863 (1876).

 Finally, should limitation be denied, and should the COLOMBIA be required to pay damages to the TRANSHAWAII, Grancolombiana has counterclaimed under Rule 13, F.R.Civ.P., for a contribution in general average against the Cargo Claimants.

 After the issues as to liability were fully submitted and pending decision, the Supreme Court decided the case of United States v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (May 19, 1975). In that historic decision, the court overruled a 120 year old doctrine of The Schooner Catharine v. Dickinson, 58 U.S. (17 How.) 170, 15 L. Ed. 233 (1855), and ruled that henceforward damages in a collision case should be divided between the parties in proportion to their relative degrees of fault for the accident. Subsequent to that decision, and at this Court's suggestion, the trial record here was reopened, and the parties submitted supplemental post-trial memoranda. However, no additional evidence was proffered by any party following the enactment of the new Reliable Transfer rule of damages, which is discussed in greater detail below.

 The Vessels

 The COLOMBIA is a steel motor vessel, 11,656 gross, 6,812 net and 12,253 summer deadweight tons of Colombian registry. She is 554 feet, 7 inches in length, 69 feet, 5 7/8 inches in maximum breadth, and 42 feet, 3 7/8 inches in molded depth. She was built in Hamburg, Germany in 1964 and is powered by a 14,400 brake horsepower diesel engine. On September 11, 1971 and prior to the accident, she had been surveyed by the American Bureau of Shipping and retained in the A-1E class, the highest relevant available rating.

 The TRANSHAWAII is a steam turbine containership of United States registry. Although she began life as a C-4 troop transport, in 1968 and 1969 she was converted and rebuilt by Maryland Shipbuilding & Drydock Co. of Baltimore. TRANSHAWAII weighs 13,487 gross and 9,630 net tons, is 632 feet, 10 1/2 inches in length, 71 feet, 6 inches in maximum breadth, and has a molded depth of 43 feet, 6 inches.

 It is important to describe COLOMBIA's steering mechanisms in some detail. There were three separate and independent electrical methods for steering the vessel from the bridge. By means of a switch on the console below the wheel, the helmsman selected the system which he desired to use. One method was the automatic gyro pilot, which was operated by adjusting a dial on the console to point to an intended compass course, following which the steering device automatically tracked the gyro compass. The automatic gyro pilot was generally used for cruising at sea and was in operation immediately prior to the events leading up to the collision.

 The second steering system available to the helmsman on the bridge was the manual, or hand-electric mechanism. By turning a vestigial wheel, consisting of three spokes and an incomplete ring, either to the left or right, the helmsman activated an electronic mechanism which altered the vessel's course in the same direction. This hand-electric system was used in tight situations such as narrow channels and in docking.

 A third method was also available to steer the ship from the bridge. This mode consisted of two pushbuttons on the console. The pushbutton on the right when activated would steer the vessel to starboard and continue to move the rudder as long as pressed, while the left pushbutton operated in the opposite fashion.

 On the COLOMBIA there were two separate electric cables which extend from the aforementioned console on the bridge to the steering engine locker in the engine room. One of these electric cables ran down the starboard side of the ship, and the other ran down the port side. By means of a cable selector switch, one could select the particular cable to be used at any particular moment. Thus only one cable would be used at a time and under normal circumstances on the COLOMBIA, this was the starboard cable. The two cables were completely independent on one another, so that a severing, grounding or short-circuiting in one cable would not affect the operation of the other.

 In the steering engine locker, the impulses were received from the bridge console by means of the particular electric cable then in use. When all was operating correctly, these impulses activated the electric steering engine, which moved the rudder through hydraulic pumps in accordance with the signals it received. The steering engine itself was an electrohydraulic type with rotary activator on the rudder stock. It is important to note that transmission of electrical impulses over two separate circuits was necessary in order to execute a course change from the bridge; one circuit transmitted the impulses from the bridge to the steering engine room, and the second thereafter energized the steering engine hydraulic pumps which moved the rudder in accordance with the signals received.

 There were also auxiliary means of steering the COLOMBIA. It was possible for an oiler or engineer in the steering locker, directed by telephone or otherwise, by means of a hand clutch, to uncouple the machinery which permitted steering from the bridge, and, after engaging a second clutch, to position the rudder manually by turning a so-called "trick wheel." A rudder angle indicator was available on the bridge which showed the actual angle of the rudder at all times. The same information was also available in the steering engine locker, and thus an oiler or engineer in the locker could set the rudder in any position desired, by manual operation from that station.

 In addition, the vessel had a manually operated, mechanical steering wheel located aft on the boat deck approximately fifty feet from the stern. Even assuming a complete electrical failure on the COLOMBIA, a seaman could steer the ship by rotating this wheel, if the electric steering engine were first uncoupled in the locker and the manual wheel clutch was then engaged. Since this seaman would not have a clear line of vision, he would need the assistance of someone on the bridge to transmit directions by means of a hailing horn or otherwise.

 To summarize then, an officer on watch faced with the loss of steering on the bridge could telephone the engine room and give an order to move the rudder to the desired position by turning the trick wheel in the steering locker manually; or, he could station a seaman at the steering wheel on the boat deck, and by bullhorn, megaphone, telephone or any other method, he could instruct him as to how to steer the vessel, as long as the steering engine clutch was first uncoupled and the mechanical wheel clutch was engaged. Thus, failure of the electrical steering mechanism did not necessarily deprive the vessel of the ability to steer.

 While it is true that a number of revolutions of the trick wheel, or the manual wheel, would have been required to effect a significant correction in COLOMBIA's course, I find there was significant time to do so, and such an effort, if made promptly, alone or in conjunction with a reduction in speed, would have averted the collision.

 The electrical steering system, manufactured by the Allegmeine Elektricitats-Gesellschaft Schiffbau of West Germany ("A.E.G."), is commonly in use on many vessels of all flags. When used, as on the COLOMBIA, in conjunction with the Sperry Gyropilot Steering Control, manufactured by the Sperry Gyroscope Co., Ltd. of England, this steering system is generally accepted as adequate and proper for a vessel in the highest class.

 The Collision

 The TRANSHAWAII had departed from San Juan, Puerto Rico late in the evening of September 11, 1972, and on the afternoon of the 14th, she was proceeding towards Baltimore with a cargo of 200 to 300 containers. As was his custom, Captain Morin, Master of the TRANSHAWAII, had been on the bridge since 1100 hours in anticipation of a landfall off Cape Hatteras. In the mid-afternoon, TRANSHAWAII was proceeding on a course of 340 degrees true, and turning about 82 rpm, which gave her a fullahead sea speed of about 17 1/2 knots.

 The COLOMBIA had left Jacksonville, Florida at 1655 hours on September 13th, bound for Baltimore, Maryland with, inter alia, a bulk cargo including bananas. On the afternoon of the 14th, COLOMBIA was steaming towards Diamond Shoals Light off Cape Hatteras on a heading of 047 degree, at a full sea speed of 19.2 knots (112 rpm). At about 1520 hours the Master of the COLOMBIA, Captain Kleindl, came onto the bridge and first observed the TRANSHAWAII, about 10 miles distant off the starboard bow. The weather was clear and warm, the visibility was excellent, and the seas were calm.

 At 1600 hours the watch on both ships changed, with Chief Mate Gabriel Rodriguez taking over on the bridge of the COLOMBIA and Second Mate Claude Chaffin assuming the same position on board the TRANSHAWAII. The second mate on the COLOMBIA remained on the bridge until a course change begun at 1605 hours was executed and completed at 1610. This change was accomplished by switching the steering mechanism from automatic gyro to hand electric, and then turning the vestigial wheel on the console. The COLOMBIA then steadied on a course of 357 degrees and the steering was switched back to automatic gyro by means of the switch on the console. Before he left the bridge, the second officer wrote the new heading of 357 degrees on a blackboard on the bridge in front of the console.

 The COLOMBIA's magnetic heading, as shown by the magnetic compass located on the upper deck and visible in the wheelhouse by means of a periscope, was then 005 degree Mag., and this heading was also written on the blackboard at that time.

 The reason for this course change was that at about 1610 hours the COLOMBIA came abeam of Diamond Shoals Light and it was necessary to change from a northeasterly to a northerly course in order to make the next mark.

 Meanwhile on the TRANSHAWAII, the engineer had begun to blow tubes at 1600 hours, as was his custom. This lasted about 15 or 20 minutes and effected a slight reduction of the revolutions per minute, and speed. At about the time the COLOMBIA changed course behind her, Captain Morin ordered the helmsman, Hrysaghis, to alter TRANSHAWAII's course 20 degrees to the right, from 340 degrees to 000 degree. This order was carried out at 1610 hours. At the moment when the ship steadied on a north heading, Chaffin fixed the position of the TRANSHAWAII at two miles north of Diamond Shoals Light.

 Between 1610 and 1625 hours, the COLOMBIA began to overtake the slower TRANSHAWAII. COLOMBIA proceeded to come up on the port quarter of the containership. As she began to close, Captain Kleindl swung COLOMBIA underneath the stern of the slower vessel, and by executing a course change to 005 degrees, he was able to come up on the starboard side of TRANSHAWAII to where he could proceed in a safe fashion on an approximately parallel course for Baltimore. This maneuver was accomplished at about 1625 hours without incident or difficulty, and shortly thereafter, COLOMBIA came abeam of the containership. Both Captain Morin and Mate Chaffin had been observing the COLOMBIA's movements from the starboard wing on the bridge of their vessel. At the moment the vessels were abeam, Captain Morin took a radar reading which placed the COLOMBIA at a lateral distance of between .5 and .6 of a mile.

 After she came abeam, Captain Kleindl, using the trim control knob, made a slight course change so that by 1632.4 hours COLOMBIA was on a 000 degree heading of true north. At that point, COLOMBIA had overtaken and was free and clear of TRANSHAWAII. She was headed towards buoy R-10, 15 miles away. When COLOMBIA had proceeded ahead by about a half mile and both vessels were in their respective tracks, about three-quarters of a mile apart from each other measured by a straight line between the bow of the TRANSHAWAII and the stern of the COLOMBIA, Captain Kleindl was satisfied that his vessel was clear. He then left the bridge, to collect some personal laundry that was drying on the upper deck near the magnetic compass.

 First Mate Rodriguez was thus left alone on the bridge, with the steering set on automatic gyro pilot. The quartermaster, who would normally take the wheel while the officer stood watch, was doing maintenance work on the boat deck below the bridge.

 Rodriguez, a resident of Bogota, Colombia, had gone to sea for more than fifteen years. He graduated from the Naval School in Cartagena, Colombia in 1960, after successfully completing a four year course. He had sailed on the COLOMBIA and her sister ships in the Grancolombiana fleet for more than four years beginning in 1968 as a second officer. In 1970 he received his first officer's license, and had served continuously on the COLOMBIA as the Chief Mate from January 1972 until the day of the collision.

 Rodriguez testified, and I find that shortly after the Captain left the bridge he was observing the reflection of the sun on the water. (The sun was in the west, and thus on COLOMBIA's port side.) After a few moments he noticed that the position of the sun in the water seemed to change, and realized that the vessel seemed to be falling off to port. He checked the gyro compass, which still showed the vessel's heading at 000 degrees, however, he also checked the magnetic compass, by means of the periscope in the wheelhouse. This gave him a reading of 005 degrees Magnetic, when it should have read 008 degrees. Thus Rodriguez had apparently detected a 003 degree falling off to port, and an unexplained difference between the gyro and the magnetic compasses. This was confirmed when Rodriguez also noticed that the rudder angle indicator at the bridge was showing that the rudder was turned between 10 and 15 degrees to port, when it should have been midships.

 To bring COLOMBIA back on course, he moved the steering control switch from automatic to manual, and put the wheel all the way to the right. The rudder did not respond, and in fact kept going further to port. He then switched to the pushbutton steering mode and pressed the button for a right rudder. Still the rudder gave no response, and in fact now fell all the way over to port, between 30 and 35 degrees left rudder on the rudder angle indicator. From the time Rodriguez first noticed the falling off until he completed this first round of manipulations he testified that between 60 to 90 seconds had passed. It well may have been a longer time interval.

 Rodriguez then walked out onto the port wing of the bridge in order to see where the TRANSHAWAII was. Upon ascertaining that she was holding to her pre-existing course and speed, he returned to the wheelhouse and once again repeated his previously unsuccessful efforts to steer the ship from the console. He attempted again to use the emergency pushbutton system, again without response, and after switching over to the manual mode, swung the wheel over hard right again. Still the rudder did not move from its hard left position. One more time he tried the pushbutton mode (without changing the cable selector switch), but with no success. This second round consumed about 90 seconds. There was no reasonable basis for trying a second time, having failed on the first. This useless effort wasted precious time.

 Up to this point, no attempt had been made by Rodriguez to alert anybody else of the fact that the COLOMBIA was rapidly sailing into danger. Her course was turning rapidly to the left. Rodriguez had not communicated with the engine room, to have the rudder brought back to the right by manual operation of the trick wheel. Nor did Rodriguez make any effort to obtain the assistance of a seaman to engage and operate the mechanical wheel on the boat deck. Either of these procedures would have restored steering control to the vessel, and, if taken as soon as the failure occurred, would have avoided the collision.

 Instead, Rodriguez apparently panicked, and running out again onto the port wing, merely yelled for the Captain. At last, returning to the wheelhouse after more than three minutes had elapsed since the steering failure had first been noticed, he sounded the ship's whistle. *fn3" COLOMBIA's radio operator, Giron, then came onto the bridge to report to Rodriguez that his power had failed. Rodriguez told him that there was going to be a collision. Then Rodriguez finally went to the engine telegraph and put the engines on stop. About twenty seconds later, the engine room answered the telegraph order. Between 10 and 15 seconds after the engine room responded and considerably less than one minute after the whistle had first been blown, the collision occurred, about 12 miles north of Diamond Shoals Light, at 1644 hours.

 The evidence from the vessel's course recorder and the testimony shows that it had been approximately four minutes and twenty seconds from the time the steering failed and the rudder began to move to the left, until the collision. *fn4" The ship had in the meantime turned 90 degrees to port and was heading 270 degrees at the moment of impact. The TRANSHAWAII's bow struck the COLOMBIA on her port side at a right angle, approximately 180 feet from the stern.

 The TRANSHAWAII's Part in the Collision

 Meanwhile, the TRANSHAWAII had continued on at a speed of about 17 knots on a heading of 000 degrees. Both Mate Chaffin and Captain Morin had been on the starboard wing of the bridge, and had seen the COLOMBIA maneuver without difficulty and pass their vessel. After COLOMBIA was about two or three ship lengths ahead of their starboard bow, both men came back into the wheelhouse where the helmsman, Hrysaghis, was steering the ...

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